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THE LEGAL ASSAULT ON PHYSICIAN-PATIENT PRIVILEGE Marilou McPhedran
she refused two court orders to hand over her records about the therapy a rape complainant had received. In Ontario, where the battles over disclosure of complainants' personal records in criminal cases of sexual violation have intensified, two doctors are facing disciplinary review for releasing patients' records without their consent after receiving pretrial subpoenas. As well, the Ontario Health Insurance Plan is being challenged for having delivered a patient's file directly to the lawyer for the accused in a sexualassault criminal case, thereby supplying the names of some 100 doctors and other health care professionals who had ever treated the rape complainant. Most of them subsequently received subpoenas to produce all their records relating to her. Earlier this year, two hospitals in Toronto, along with two legal-assistance organizations and a community agency for women, received pretrial subpoenas to produce all their records for the past 5 years. The subpoenas did not even mention the name of the rape complainant; to comply with the demand, the organizations would have had to bring their files to court by the truckload. Rather than automatically comply, they are trying to quash the subpoenas. What's going on in our courts? Why is the issue of personal records in criminal sexual-assault and abuse cause
This article, the first of two, will provide some basic definitions, summarize some principles and focus mainly on two cases O'Connorfrom British Columbia and Beharriell from Ontario. Botb are awaiting imminent decisions following appeals to the Supreme Court of Canada. The second article will appear after the Supreme Court has released its decisions. Marilou McPhedran, a lawyer who is currently employed at Women's College Hospital in Toronto, chaired Canada's first inquiry into the sexual abuse of patients, commissioned by the College of Physicians and Surgeons of Ontario.
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1993, after reading about a criminal trial in which a former patient
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alleged she had been raped and a man was subsequently convicted, a Nova Scotia psychiatrist contacted the Crown attorney and said he had doubts about the credibility of the woman s testimony. Some of his records about the patient were subsequently used as the basis for a successful appeal for a new trial. On Canada's other coast, meanwhile, a British Columbia psychiatrist faced contempt-of-court charges be-
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Earlier this year, two hospitals in Toronto, along with two legal-assistance organizations and a community agency for women, received pretrial subpoenas to produce all their records for the past 5 years. The subpoenas did not even mention the name of the rape complainant; to comply with the demand, the organizations would have had to bring their files to court by the truckload. Rather than automatically comply, they are trying to quash the subpoenas. cases now so "hot," when for some time doctors have quite routinely handed over patients' records in civil cases? The answer lies in understanding the effect of Criminal Code amendments made in 1983 and 1992 and the 1982 enactment of Canada's Charter of Rights and Freedoms, combined with a 1991 Supreme Court of Canada decision - known as Stincbcombe - that extended the mandatory disclosure of evidence to the accused in criminal cases. The reporting of sexual assault and sexual abuse increased by approximately 90% from 1984 to 1991. In 1991, 30 000 reports of sexual assault were made to Canadian police, although not all of them led to trials. Statistics Canada says that of national survey respondents who acknowledged that they had been sexually assaulted, only about 6% had gone to the police to press charges. Michael Edelson, an Ottawa defence lawyer, has noted that sexualassault cases have become a "growth industry" for defence lawyers: "Every time I turn around there is more sperm and pubic hair in some file on my desk." I will explore some contradictory approaches to the "rebalancing" of the rights of those accused of sexual assault and those who are the key witnesses making the allegations. Can there be appropriate and just disclosure of medical and therapeutic records, given that such records 1504
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are defined and acted upon quite differently in the arenas of law and health? Medical and therapeutic records are kept for the purpose of healing, not as findings of fact for a court of law. Actually, rules of evidence generally categorize such records or testimony as "hearsay." Increasingly, however, Canadian courts are being asked to disregard privilege between doctor and patient when that patient has reported a sexual assault.
documents relating to a patient, such as a rape complainant. It is usually not difficult to get a subpoena, because Section 698 of the Criminal Code states that the defence only has to show that a person is "likely to give material evidence." The person subpoenaed is not required to give the records to the defence automatically. Rather, once the person appears in court, the judge will hold a hearing to determine whether or not some or all of the records will be released to the defence.
PRIVILEGE BETWEEN DOCTOR AND PATIENT
STATUTORY PRIVILEGE
Privacy is valued in our society. Personal records held by a doctor in trust for a patient have been considered "privileged," meaning that the documents are private unless a court orders them disclosed. Privilege is attached to personal records in two ways - by statute or common law. Regardless of the nature of the privilege, before a criminal trial begins the defence lawyer may try to obtain records from a third party, such as a doctor or hospital, by delivering a pretrial subpoena.
Personal records governed by statutes can include records created by physicians, hospitals, schools and other professionals or organizations. Different statutes contain different standards or tests that must be met before privileged records are to be released to a court when requested by the defence in a criminal case.
COMMON LAW PRIVILEGE
Common law is derived from a body of consistent judicial decisions about an issue that has not been contradicted by subsequent statutes. The THE SUBPOENA common law test for considering A subpoena is a legal document whether records are privileged inthat orders people to appear in court cludes the following four characterison the day stated, bringing with tics: them all records in their possession The personal records must have or control "relating to the subject been created in a relationship matter of the proceedings." In a where confidentiality was exphysician's case this could mean all pected.
* Maintaining confidentiality must be necessary to maintain the effectiveness of the relationship. * The relationship must be one that society has an interest in fostering. * The benefits of protecting the confidentiality of the relationship must outweigh the benefits of violating the confidentiality.
Lawyers Weekly in May 1988 when Edelson, the Ottawa defence lawyer, pointed out the advantages of attacking the complainant at the pretrial stage: "You have to go in there as de-
against the wishes of her patient, Dr. Kathleen Parfitt told reporters: "In my opinion I'm being ordered to do something which is harmful to my patient." She said the court did not seem to appreciate her concerns about the potential for psychologic damage. "People have come to me and said that they would never have gone into therapy if they knew this would happen." In a 1991 decision, the Divisional Court of Ontario recognized some fundamental rights for witnesses: "The information contained in the
fence counsel and whack the complainant hard .. get all the medical evidence; get the Children's Aid Society records ... and you've got to attack with all you've got so that he or she will say, 'I'm not coming back.'" The shift toward questioning THE IMPORTANCE OF THE on their past sexual complainants RULING history by using personal records is Canadian physicians currently now being documented. In a survey face contradictory court rulings on disclosure of privileged records and communications. The Supreme The Ottawa Rape Crisis Centre noted that in its first Court of Canada's imminent decisions in O'Connor and Beharriell are ex18 years of operation it did not receive a single pected to establish clearer guidelines request for access to records; however, nine for health care professionals and their associations. were received in 1994. While waiting for the Supreme Court's decisions, let's explore what is at stake in a range of cases that affect whether or not physicians keep or of the Ontario Coalition of Rape medical records was compiled in cirrelease patients' records. Crisis Centres, it was reported that cumstances giving rise to the highest 46 subpoenas were sent to centres expectation of confidentiality, which in 1994. The Ottawa Rape Crisis deserves to be zealously guarded in THE DEFENCE STRATEGY Centre noted that in its first 18 the interests not only of the persons When personal records are not years of operation it did not receive who are the subjects of the informawithin the Crown's control, defence a single request for access to tion but also in the interests of prolawyers try to get pretrial subpoenas records; however, nine were re- moting trust and confidence of the to gain access to information about a ceived in 1994. public in the administration of medwoman's health that has the potential ical facilities." not only to discredit her as a com- DAMAGE TO THE PATIENT plainant but also to focus attention on THE CONFUSING STATE OF her as the witness, and away from the This growing trend toward court- THE LAW accused. Then the trial is more about ordered production of medical what the victim is like, rather then records brings a new and harmful diManitoba law professor Karen whether the accused violated her. mension to women's experience with Busby has identified 39 Canadian Discrediting witnesses is an im- the criminal legal system. Records cases between November 1993 and portant trial technique. A vigorous subpoenaed by the defence may in- May 1995 in which the defence tried defence is a defendant's right in our clude notes from the complainant's to gain access to the personal records legal system. However, a line is physician or rape-crisis counsellor, of Crown witnesses. Most involved crossed when our courts allow evi- school or Children's Aid Society criminal trials with allegations of sexdence about the key witness that, records, personal diaries and, in one ual assault. In 15 of the 39 cases, by feeding unsubstantiated preju- recent case, the hard drive of the judges refused to grant access to the records. In about half the cases in dices, heightens the chance of ac- complainant's computer. At the time of her decision to which private records were proquittal. The shift in defence strategy to refuse to comply with a British Co- tected, the decisions were based on obtain rape complainants' personal lumbia Supreme Court order to turn professional privilege, or statutory records was documented in the over 7 years of therapy records privilege, or on the argument that acCAN MED ASSOC J * NOV. 15, 1995; 153 (10)
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cess to such private records was contrary to the public interest. However, in the 1995 Girard decision, which has also been appealed to the Supreme Court of Canada, an Ontario judge took a different view: 'The right of confidentiality, then, must be servient to the superior rights of the accused provided by s.7 and 1 1(d) of the Charter.` In the O'Connor case, former Roman Catholic bishop Hubert Patrick O'Connor was charged with sexually assaulting female students at an Indian residential school in British Columbia, where he was principal in the 1960s. Saying that it was following the Supreme Court of Canada's 1991 decision in Stinchcombe, the British Columbia Court of Appeal attempted to define better the balance between the right of the accused to all relevant information and the constitutional rights of witnesses to equality and security of the person in relation to their medical or therapeutic records. In Stinchcombe, the court had ruled that in a criminal case the Crown must disclose all relevant evidence to lawyers for an accused person. Because of an appeal of O'Connor, the Supreme Court must now decide whether to endorse guidelines for disclosure in the British Columbia Court of Appeal's decision, or to create different ones. In the Beharriell case, hospital and community-agency records are at issue. In 1994, the Sexual Assault Care Centre of the Plummer Memorial Public Hospital in Sault Ste. Marie, Ont., was ordered by a local judge to give defence counsel all documents it had relating to a university student ("LLA"); she was the complainant in a case involving the father of a friend, who was charged with indecently assaulting her between February and December of 1980, when she was 6. The university student had attended the Sexual 1506
Assault Care Centre for short-term counselling in January 1992. Counsel for the centre argued that its records were privileged through two avenues: applying the common law test, and applying a statutory test analogous to s.35 of the Mental Health Act of Ontario (1990), in which psychiatric records are to be disclosed only if a court determines that it "is essential in the interests of justice." The hospital and centre appealed the judge's order to produce LLA's records, but the Ontario Court of Appeal held that these "ithird parties" did not have the legal right, or standing, to bring such an appeal. That decision was then appealed to the Supreme Court, and is expected to be released when the court announces its decision in the O'Connor case.
CONCLUSION As the law currently operates, women who have been sexually violated are being forced to choose between giving up the privacy of their doctor-patient relationship or giving up access to the criminal legal system. It is ironic that the alleged action of the accused started the legal process, yet the witness risks yielding to public view her entire private life as the price for seeking justice. The upcoming Supreme Court decisions will clarify the degree to which doctor-patient records and interactions are truly privileged. In part 2, I will summarize the top courts rulings and report on amendments to the Criminal Code that might resultfrom them. Appreciation for research and analysis that greatly helped me is extended to Bonnie Agnew, Susan Bazilli, Andree Cote, Tara James, Freya Kristjanson, Lee Lakeman, the Legal Education and Action Fund, Pat Marshall, Leslie McCallum, Diane Oleskiw, Cristin Schmitz, Kate Stephenson and Lea Weir.
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